Madigan v Hughes

[1999] NSWSC 183

CITATION:	Madigan v Hughes & Ors [1999] NSWSC 183
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	11093/97; 11092/97; 20932/95
HEARING DATE(S):	01/02/99; 02/02/99; 03/02/99; 04/02/99; 05/02/99; 08/02/99; 09/02/99; 10/02/99; 11/02/99; 12/02/99; 15/02/99; 16/02/99
JUDGMENT DATE:	16 February 1999
PARTIES :	Michael Lennard Madigan v Gregory Hughes & Ors Suzanne Margaret Madigan v Gregory Hughes & Ors Simon Madigan by his next friend Michael Madigan v Gregory Hughes & Ors
JUDGMENT OF:	Abadee J at 1

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:

COUNSEL :	B. Gross QC; T. Boyd; A. Porthouse - Plaintiff M. Meil QC; Walsh - 1st and 2nd Defendants M. Joseph SC - 3rd Defendant
SOLICITORS:	Carroll & O'Dea - Plaintiff Abbott Tout - 1st and 2nd Defendants Phillips Fox - 3rd Defendant
CATCHWORDS:
ACTS CITED:	Motor Accidents Act
CASES CITED:	Sibley v Kais (1967) 118 CLR 424 Yu v Yu (1996) 26 MVR 509 Stocks & Anor v Baldwin (1996) 24 MVR 416 West v GIO (1981) 148 CLR 62 at 66
DECISION:	Verdict and Judgment for plaintiff as and against the 1st and 2nd defendants with 40% contrib. negligence, a verdict and judgment for the 3rd defendant in respect of that action as and against the 1st and 2nd defendants. In respect of the plaintiff's parents' actions for nervous - verdict and judgment as and against 1st and 2nd defendants. Verdict and judgment for the 3rd defendant.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ABADEE J

TUESDAY 16 February 1999

11093/97 - Michael Lennard MADIGAN v Gregory HUGHES
& Ors

11092/97 - Suzanne Margaret MADIGAN v Gregory HUGHES
& Ors

20932/95 - Simon MADIGAN by His Next Friend Michael
MADIGAN v Gregory HUGHES & Ors

JUDGMENT - Re Liability

1 HIS HONOUR: After a trial which has lasted for some two and a half weeks where literally dozens of exhibits have been tendered, where there have been numerous lay witnesses, where there have been many exhibits, something in the order of five or six expert witnesses, there is also six hundred odd pages of transcript to consider in relation to this matter, I am in a position to give judgment.
2 Despite what I have said, I have come to a firm conclusion in relation to that matter. I do not consider there is any benefit to be derived from reserving judgment in the circumstances. I say that because during the course of the case I have read and re-read the evidence as it is been produced. I also say it because I have had the benefit of extensive written submissions on behalf of the parties and extensive oral submissions also made on behalf of the various parties.
3 The infant plaintiff's action, being an action by Simon Madigan, has been heard at the same time as two actions for nervous shock brought by his parents, Michael and Suzanne Madigan.
4 Their actions for nervous shock arise from the circumstances giving rise to the plaintiff's own action. It was earlier agreed that the actions should be heard together, with the evidence in the one case to be evidence in the other two cases. A number of agreements have been very helpfully reached as between the parties. I commend them for the course that they have adopted in respect of the agreements that I am about to announce.
5 First as and between the plaintiff and the first and second defendants, in relation to the claim of the infant, Simon Madigan, there is agreement upon quantum of damages pursuant to the Motor Accidents Act 1998 (NSW).
6 In relation to the claim by Simon Madigan as and against the third defendant, there is agreement that if damages are to be assessed pursuant to the Motor Accidents Act, the parties are agreed as to that figure being the same figure as agreed between the infant plaintiff and the first and second defendants. It is also agreed between the infant plaintiff and the third defendant, that if the infant plaintiff's damages are to be assessed other than under the Motor Accidents Act, that is at common law, then it is agreed, that in respect to the agreed figure under the Motor Accidents Act in the assessment, no regard shall be had to that figure so agreed under the Motor Accidents Act.
7 In relation to the nervous shock claims brought by each of the parents, Michael and Suzanne Madigan, there is an agreement as to quantum with all defendants agreeing the only issue to be resolved is that of negligence generally. There is no issue as to whether nervous shock has occurred and it is agreed between all parties that contributory negligence on the part of the infant plaintiff in his own action is no defence to the parents' action for nervous shock.
8 Next, it is accepted as and between the parties that in the proceedings contributory negligence may be varied according to which of the defendants, one or all of them, may be found to be liable. Indeed contribution questions are at large.
9 Mr Neil QC made a statement to the effect that his client’s liability in respect to damages and contribution, the first and second defendant, being the owner and driver of the vehicle involved in the accident should be capped by the agreements that were announced and to which I have just referred to. He also submitted that the first and second defendant would not be liable for any further moneys on contribution, if any. He also submitted that if the third defendant and the first and second plaintiffs were not able to reach an agreement, then it might, depending upon certain matters, be necessary for him to address on further rulings in relation to the matters of the damages and contribution.
10 This is indeed a tragic case. It is a case of a young boy almost aged twelve who was involved in a motorcar accident on Saturday, 26 November 1994. He sustained most serious injures including head injuries with grave and serious consequences. One consequence should be mentioned. It is accepted between the parties that the plaintiff, by reason of the gravity of his head injuries, is, and has been, unable to give evidence touching upon the issue of liability. It has not been suggested otherwise. The Court has been denied the assistance that might have been forthcoming from the infant plaintiff had he been able to give his version of what took place preceding the receipt of his gross injuries on 26 November 1994. Fortunately from his point of view, the plaintiff’s case is not dependent upon what he might have been able to say in respect of the circumstances that preceded the accident.
11 There has been lay evidence that has been given by two other young lads who accompanied him on the bike ride that led to his accident. There is other evidence from lay and expert people that has also been given. There are inferences to be drawn from the evidence. All of these things are available to me as aids to determine the matter of liability.
12 I also add an additional remark at this stage. The extensive number of witnesses who have been called have sought to provide help to me in resolving some of the difficult issues of the facts and law that arise in the instant case. In reaching a conclusion in this particular matter, it is appropriate for me to say that many of the witnesses did not merely have a fleeting visit to the witness box, but to say the least, spent considerable periods of time in the witness box being cross-examined and tested by respective senior counsel appearing for each of the three parties. The point to be here made is that in the circumstances of this case, because the appearance of many witnesses has not been of a fleeting nature in the witness box, but has involved appearing for some considerable period of time and being subject to extensive cross-examination, that such has conferred upon me as the trial judge a particular benefit and that is the opportunity to make accurate assessments in my own mind of the reliability and credibility of such witnesses. I have seen them and I have heard them and I consider these advantages of very considerable significance in a case of this nature. The advantages of seeing and hearing witnesses also extends to the defendant motorist involved in the accident. It extends as well to the various experts who have been called to give evidence by and on behalf of the various parties. I have been able to assess their reliability and credibility including their reliability and credibility when they have been the subject of extensive cross-examination. As I have said, I have read and re-read the transcript. These matters also represent background matters as to why I believe that I am in a position to give this judgment immediately.
13 The infant plaintiff (date of birth 31 March 1983 and aged eleven years and eight months at the time of his accident) sustained various injuries when a pedal cycle he was riding north in Kudilla Street, North Engadine, came into collision with a van driven by a driver by the name of Gregory Hughes and owned by his employer, the second defendant. The accident occurred at or about 4.40pm on 26 November 1994 at the T intersection of Thurlgona Road and Kudilla Street, Engadine.
14 The plaintiff's case is that upon entering Thurlgona Road at the intersection or near the intersection of Thurlgona Road and Kudilla Street, he was struck by a van driven by the first defendant. The plaintiff originally commenced his action against the owner and driver of the van including alleging negligence in a number of respects, particularly in driving at a speed excessive in the circumstances, failing to keep a proper lookout and failure to maintain proper control over the van so as to avoid the accident with the infant plaintiff at the intersection.
15 It appears that following the issue of cross-claim proceedings by the first and second defendants against the third defendant, a road authority being the Sutherland Shire Council, the plaintiff amended his statement of claim to add the council as a third defendant. Having regard to the way the plaintiff ultimately prosecuted his case and the evidence that he actually led in his case, and putting to one side for the moment a reliance upon the evidence led in the case advanced on behalf of the driver and Council; one is left with a very distinct impression that absent the cross-claim the plaintiff would have been essentially content to prosecute his case only against the defendant owner and driver of the vehicle.
16 That said, the case advanced in the amended statement of claim against the Sutherland Shire Council, as is reflected in the cross-claim by the first and second defendants, involves an assertion of misfeasance in relation to negligence in connection with an area of roadway near or about the entrance of Kudilla Street and Thurlgona Road Engadine, and more particularly an area of roadway allegedly constituted by a sagging of a trench sewer which extended approximately 8.5 metres in an east/west direction in Kudilla Street and just to the south of a concrete dish drain extending also east and west at the entrance of Kudilla Street and Thurlgona Road.
17 It was accepted by the parties that the law in respect of the third defendant's liability if any for misfeasance is as stated in Hill v The Commissioner for Main Roads (1989) Aust Torts Reports 80-260. This case has been applied in a number of cases since then.
18 The plaintiff's case against the third defendant Council may be stated as follows. Kudilla Street and Thurlgona Road were public roads, with the third defendant being under the relevant legislation also the owner of the road. The claim is made that immediately before colliding with the van driven by the first defendant, the plaintiff rode his bicycle into a particular area of the road near the intersection of Kudilla Street and Thurlgona Road. This area more particularly may be described as being a sagged area constituted by the installation in the 1970's of a sewer line trench which in turn thereby created a sag in the road near the intersection of Kudilla Street and Thurlgona Road, indeed not merely a sag but also a depression at the south eastern corner of the intersection. The sag, it was said, was a sag that extended across Kudilla Street just to the south of the concrete dish drain and which was approximately some one thousand seven hundred and fifty millimetres wide and which was about five hundred and fifty millimetres in width.
19 The particular part of the depression, it was said, was near the south eastern corner of the intersection. Further, and in addition, it was alleged that near or about what has been referred to as the south eastern corner near or about the sewer line trench depression and sag in that south eastern corner was located a pot hole. This pot hole, it was alleged, was one in the pavement at the east side of Kudilla Street at the intersection with Thurlgona Road having dimensions of three hundred millimetres in diameter and described as being some twenty five millimetres deep adjacent with its nearest point some eighty millimetres from the concrete gutter of the south eastern corner of some eighty millimetres
20 However, a significant issue in the case was whether the bike ridden by the cyclist at any or some time in fact passed over the sag and/or depression and/or pot hole in the vicinity of the south eastern corner of the intersection.
21 Evidence was given that in respect of this pot hole that there was, as and between an imaginary centre line in Kudilla Street, and the western edge of the pot hole, a distance of 3.6 metres of trafficable area.
22 The case that is mounted by the plaintiff as and against the Council and which is also a reflection of the driver's case as and against the Council, is to the effect that the plaintiff came into contact with the sag and/or depression and/or pot hole in about the vicinity of the south eastern corner of the intersection as the plaintiff proceeded down the street into Thurlgona Road and that somehow or other the contact with those areas and, particularly, the pot hole area, caused a wobbling in the bike which in turn caused or contributed to the plaintiff's accident. That accident or impact occurred in Thurlgona Road which I will detail in due course.
23 Indeed, it is particularly alleged by the first and second defendants that the plaintiff allegedly cut that corner as he proceeded into Thurlgona Road which contained in the area, a depression, sagging or pot hole which, it is said, caused or contributed to the plaintiff developing a wobble in his bicycle as he drove through the area. This it is said caused subsequent loss of control which in turn caused the bike to veer into the path of the first defendant's motor vehicle.
24 The issues joined between the plaintiff and the third defendant Council and between the first and second defendants and the third defendant Council involve issues of misfeasance. However, it is common ground, having regard to the way the case has been conducted that, if the plaintiff was not cutting the corner as he proceeded north east, ie cutting the south east corner of the intersection, but was rather on his correct side of the road as he proceeded down Kudilla Street before turning into Thurlgona Road then the question of the accident being caused or contributed to by the presence of the sewer line trench, sag, depression and/or pot hole in the vicinity of the south eastern corner really disappears and such presence really has no role to play.
25 It is appropriate if I just make some other observations in respect of this sagging or depression or pot hole particularly in the region of the south eastern corner of the intersection. It would appear that Kudilla Street was constructed sometime in the 1970’s. A sewer line trench was installed in an easterly and westerly direction and measuring about eight point five metres just south of a concrete dish drain near the intersection of Kudilla Street and Thurlgona Road. The evidence would suggest that the sewer line trench and the back fill at the time was installed by the Water Board and that the works of back fill were done also by the Water Board. That seems to be an irresistible inference on the evidence and it is not disputed that it is open for me to make that finding. The evidence would also suggest that following the installation of the sewer line trench that there was a back fill done which was by way of temporary reinstatement, such temporary reinstatement work being again done by the Water Board.
26 Within six months or so of that temporary reinstatement it would appear that the Council, ie the third defendant, completed or more accurately participated in, what was called a permanent reinstatement of that sewer line trench works. It is also clear that any subsequent repairs to the trench line were carried out and conducted by the third defendant Sutherland Council.
27 An issue has arisen as to whether, following the reinstatement of a permanent nature in the 1970's by the Council, there was or has been more than one other repair.
28 Sutherland Council has contended that there was only one repair to the sewer line trench works and the sag area allegedly caused by the original sewer line works in or about 1989. Mr Clark, an expert gave that evidence.
29 Dr Yeaman, an expert who was called on behalf of the driver and owner of the vehicle, gave evidence that he thought that there had been more than one repair subsequent to the permanent reinstatement. He thought there may in fact have been two or three repairs with the last one being in or about 1989.
30 It is not necessary for me to resolve this somewhat interesting dispute nor is it necessary for me to resolve any questions as to the number of repairs, or whether or not there had been any misfeasance on the part of the Council or further, whether or not even assuming there was a breach of duty on the part of the council, whether such breach of duty caused or contributed to the subject accident. I say this because I have reached a firm conclusion that as the boy turned into Thurlgona Road from Kudilla Street, that he did not cut the corner when he was proceeding in an easterly direction or to put it another way, did not cut the south eastern corner of the intersection as it has been referred to.
31 Thus it seems to me, and again having regard to the way the case has been conducted, that such a finding would therefore remove the existence or otherwise of a pot hole or sag or, alternatively, a depression in the south east corner of the intersection as having been a factor in the terms of the accident, or, even in terms of producing what is said to have been a wobble in the bicycle that was allegedly observed as it entered the intersection.
32 Once I make the finding as I do, that the plaintiff did not cross the area represented by the sagging depression or pot hole in or about the vicinity of the south eastern corner of the intersection, and it also appears to me, or further or alternatively, that the vehicle impact did not occur further to the east of the Thurlgona Road, then those findings would also lead to the conclusion that whether or not there was a breach of duty in relation to the surface of the south eastern corner of the intersection, that such had nothing to do with the accident. In my view having regard to where and the way the accident occurred which I will describe more fully in a moment. The accident had nothing to do with the surface or condition of the road in the south eastern corner. Thus, it seems to me that having regard to the way this case has been conducted, that the infant plaintiff's action as and against the third defendant must fail and the first and second defendants' cross-claim as against the council must also fail.
33 Before dealing with the question of the point of the impact and indeed what occurred on the day in question, it is appropriate for me to mention several other things. I also note however at this moment in time that there has been an allegation of contributory negligence on the part of the plaintiff, an allegation or allegations made about the first and second defendants as well by the third defendant. It will be necessary to return to this subject of contributory negligence before I conclude my remarks and reasons for judgment.
34 Let me turn now to the accident's location. I state that the weather at the time of the accident was reported as being fine, the road surface as asphalt and dry. According to the police report, the traffic in Thurlgona Road was described as light. The view was open. The P4 report tendered described Thurlgona Road as a main road. For the purposes of understanding the case, the way the litigation has been conducted and the evidence, it is appropriate if I immediately draw attention to the fact that the trial has been conducted and the witnesses have given their evidence by reference to the compass points to be found in exhibit A tendered in the proceedings.
35 The facts and circumstances surrounding the occurrence are in dispute. The lay evidence and the expert evidence are in dispute. What preceded the accident is in dispute, the point of impact described by one expert witness as the point of impact is very much in dispute. What happened and why it came about is something about which the infant plaintiff was unable to give evidence.
36 It has been accepted by the parties that I am entitled to, as any tribunal of fact whether it be judge or jury, to accept part of a witness' evidence and reject part of a witness' evidence. A matter that also gives rise to serious concern, is the matter of evaluating the credibility and reliability particularly of a number of lay witnesses called in the defendants’ case and who, did endeavour to the best of their abilities, to properly give evidence according to their recollection of events. I mention some of their names, Mr Murtagh, Mrs Woolley, the latter who was first interviewed about the event in 1996 but apparently first interviewed on investigation by the first and second defendants around about the end of the April 1997. Other witnesses also include Mr Zammit and Mr Cope. I have given full weight to their views but also borne in mind that with the exception of Mrs Woolley, those persons whose names I have just referred to did not appear to have become involved in the cases until 1997, up to two and a half years after the accident. They do not appear to have come forward to speak to the police officer who was investigating the circumstances of the accident.
37 I mean no disrespect to such persons referred to, or indeed to any of them if I say that I believe that in the circumstances of this case, that it is proper that I should act upon the recollections of the two young bike riders or two young children who were accompanying the plaintiff on a bike ride that preceded the subsequent occurrence. In fact I feel, subject to some qualifications, that I can safely act on the views of the plaintiff's young brother, Adam Madigan, and again, subject to some qualifications, the views of the plaintiff’s young friend, a young man by the name of Rhys Baldwin. They were two persons who were riding by cycles with the plaintiff at the scene. What occurred to this young plaintiff must have been quite a horrific experience for each of the two boys. Where there is conflict between what the boys recalled at the time of the accident in terms of what generally took place, subject to some qualifications, and what the lay witnesses could recall perhaps some two and a half years later or in the case of Mrs Woolley perhaps one and a half years, it is appropriate for me to say, that having seen and heard the young boys, I accept their evidence where it is in conflict with the recollections of adult individuals, one or all of them seeking to recall events some two and a half years after the event and, perhaps, in the case of Mrs Woolley, one and a half years after the event.
38 It is appropriate for me to state that an additional reason for generally again accepting the two boy’s evidence subject to some qualification, is that their evidence as to point of impact in terms of the point of impact between the vehicle and the bike does generally coincide in a general sense with what I regard as being admissions by the defendant, Mr Hughes, to the police officer as reflected in diagrams and drawings in the P4 report, as well as to those referred to in his later “reports” to Lumleys, the vehicle insurer, and to CIC insurance company. This generally contemporaneous material provides generally support for the point of impact as described by the two young boys rather than the point of impact sought to be advanced by the defendant driver as well as by two of the lay witnesses called on his behalf, in particular Mrs Woolley and Mr Cope.
39 Indeed, there is another reason why one would generally accept the two boys: they appeared to me to be intelligent boys, not coached in any way. They were cross examined extensively. They are the sort of young boys who, generally speaking, whose evidence I can rely upon.
40 In addition, there is not only Mr Hughes providing information as to the point of impact to the police, CIC and to Lumleys, but, I also have regard to the fact that there is evidence from a Constable Pearson touching upon the point of impact unrelated to a drawing that was provided for the P4 purposes by Mr Hughes.
41 The police officer who attended the scene, Constable Pearson, appeared to be an impressive police officer who did her best not merely to collect information as to what occurred and what happened but also sought to identify where the point of impact was which she then gave in her evidence. Now, that particular point of impact was not based merely upon what the defendant Mr Hughes told her. She identified debris on the road which assisted her in identifying the point of impact in Thurlgona Road. She thought that the materials came from the bike and vehicle involved in the subject occurrence. I feel that in the circumstances of this case I can also quite confidently act on the generally contemporaneous material, the drawings of the point of impact which allowing for some variables, are not of any significance in terms in determining and deciding where this accident occurred. I believe that the point of impact can be identified, not merely in terms of an east west situation, but also in terms of a north south situation in Thurlgona Road. The precise point I will come back to in a moment.
42 One other matter that I feel it is appropriate for me to make an observation about is that the defendant driver, Mr Hughes, gave evidence before me. I am prepared to accept that he was shaken up after the accident and when he spoke to the police. The accident must have been a dreadful experience for him and I make due allowance for that matter as well. That said, I am bound to express the view that I regarded Mr Hughes as being an unsatisfactory and unreliable witness. Unsatisfactory and unreliable in several respects: first of all, the evidence that he gave as to the point of impact is not evidence that I can accept. Indeed, I do not accept it because it conflicts with my view as to where the point of impact occurred in Thurlgona Road.
43 Further, there are a number of inconsistencies in the accounts that were given by Mr Hughes in relation to what occurred both prior to and subsequent to his sighting the plaintiff and prior to the impact with him. After he observed the boy coming out of Thurlgona Road, Mr Hughes gave a description of the boy's conduct and behaviour on the bike prior to the point of impact which he put as being further east of the intersection in Thurlgona Road. Next, in respect of the particular type of conduct on the part of the plaintiff before impact, what he claimed he observed him to do in a number of respects it just could not have happened in the way that he described. Indeed, so much appears to have been accepted by the defendants' experts Mr Griffiths and Mr George. There is no need to mention the respects that I have just referred to.
44 Next, it appears that apart from the defendant giving different versions of a number of matters to different people I just find it impossible to accept his claim (at p 136) that when he first saw the plaintiff coming out of Kudilla Street that the plaintiff was virtually heading east, that he was cutting the corner and that he was heading north east.
45 The defendants' case has been advanced upon the basis that that is what happened, that the plaintiff had cut the corner, the south eastern corner of the intersection, and was involved in an impact on the defendant driver's incorrect side of the road in Thurlgona Road and further east of the intersection than where I consider the impact to have occurred. Indeed, the finding as to the point of impact is significant. In my view the point of impact between the defendant driver and, indeed, the rider was not only on the defendant driver’s incorrect side of Thurlgona Road but also in what has been described by Mr Gross QC for the plaintiff as the “throat of the intersection”. The point of impact may in my view be seen not merely in the diagrams and in the P4 form as well as in the Lumley and CIC claim forms but can be more accurately understood as having occurred in the throat of the intersection as illustrated in a document produced by Mr Griffiths being exhibit 26.
46 I consider and find that the impact occurred in the throat of the intersection and did not occur, as has been suggested, perhaps seven and a half metres or so further to the east in Thurlgona Road as has been contended for by the driver and his legal representatives. I will come back to this matter in due course.
47 I now turn to another aspect of the matter. At the time of the accident the bike was being ridden by the plaintiff. He was almost aged twelve and was an experienced bike rider. His father and other siblings were likewise experienced, a matter that I will return to later. The bike he was riding was a Repco brand BMX bike that was almost regarded as being a reserve bike that was kept in the home and which he had ridden earlier in his life time. The plaintiff had owned his own bike for two years. He had ridden his sister's bike before then.
48 Thus in my opinion the plaintiff, albeit aged twelve was an experienced bike rider and had sufficient knowledge and tuition to ride on the road and understood the complexities of bike riding and rules of riding upon the roads.
49 One issue that can be immediately put to one side right here and now concerns the matter of what has been said to be a missing brake pad from the front wheel of the bike. Having regard to the nature of the impact and circumstances of the accident, I find as a fact that the pad was probably lost or dislodged in the accident and was caused by such. I reject any argument that it was missing before the impact. I reject any argument that it was defective, and somehow or other caused or contributed to the subject accident.
50 At the time of the accident the plaintiff was wearing an approved Rosebank stack hat, yellow in colour. It was designed for wear for bike riders. He also appears to have been wearing light clothes.
51 Let me now come to the environment in which this accident occurred. Thurlgona Road is a local street which for the purposes of this trial has been described as travelling generally in an east west direction. As I said, the trial was conducted upon the basis that the compass points were those as reflected in exhibit A with evidence being given by reference to those compass points. The area consisted of low density family homes populated by persons of all ages from children to adults. It was an urban area with a permissible lawful urban speed limit of sixty kilometres per hour. It was not sign posted.
52 Thurlgona Road is a local road also, as I have said, extending through low density residential land. It is the top of the T, or, to put it another way, Thurlgona Road represents the top of the T where it intersects with Kudilla Street which runs in a north south direction. Kudilla Street links Corriengah Heights Road with Thurlgona Road. Kudilla Street is a street which may be described as a fairly steep slope descending to Thurlgona Road where the top of the descent is at the intersection of Kudilla Street and Corriengah Heights Road. In respect of Thurlgona Road to the east of the intersection with Kudilla Street, there is an incline to the east. A driver driving along Thurlgona Road approaching Kudilla Street intersection from the east, proceeds up a gradual incline.
53 In the vicinity of the accident location, Thurlgona Road consisted of a full width asphalt pavement between concrete gutters. The pavement was about 8.5 metres wide between kerbs. It is suggested that the maximum grade in Kudilla Street was 12.5 percent. Mr Wingrove, another expert, suggested it had a fairly steep 13 percent downgrade as it approached the intersection. The appearance from the photographs tendered, suggested that on any view, Kudilla Street did have a steep down hill grade.
54 Evidence was given that Thurlgona Street ran moderately uphill of the intersection, described at about a 6 percent grade for travel along the van's path towards the intersection. At the time of the accident Mr Hughes was driving west in Thurlgona Road.
55 I am satisfied that the plaintiff had entered the intersection having travelled down hill in Kudilla Street in a northerly direction towards the intersection. I am satisfied and I accept the two young boys’ evidence that on the day in question the journey down hill or the journey that preceded the accident commenced halfway up the hill. Some evidence was given that Kudilla Street was not only a street with a steep down hill but also was a street some eighty metres or so in length. I have already mentioned that at or about the threshold of Kudilla Street with Thurlgona Road a concrete spoon drain crosses the road from east to west to prevent rainfall run off flowing down Kudilla Street from continuing across Thurlgona Road. The concrete dish drain or spoon drain was about forty millimetres in depth.
56 Let me also make some further observations about the accident location. Thurlgona Road was a road running east and west in an urban area. In that area lived a spectrum of persons in age ranging from the young to the old. Families lived in the area. So much appears not to be in dispute. Of significance is that in Thurlgona Road and the vicinity of the accident there are no footpaths on the northern or southern sides. There are grass nature strips interrupted from time to time by concrete driveways giving access from Thurlgona Road to the houses behind the nature strips. Again similarly there are nature strips in Kudilla Street interrupted by concrete driveways giving access to people in Kudilla Street. Three large trees were located on the south eastern side of Thurlgona Road in the front of the premises number 74. They substantially concealed approaching views to Kudilla Street for a car approaching or proceeding uphill or along Thurlgona Road and travelling from east to west towards the intersection. There were also trees in the premises number 74. At the time of the subject accident around the corner in Kudilla Street there was a concrete drive giving access to number 74. There was a car parked in that concrete drive at the time of the accident.
57 I am satisfied that the trees in the vicinity substantially interrupted visual observations for a driver proceeding west in Thurlgona Road as he approached the intersection to Kudilla Street. Trees may thus have influenced the driver's ability to observe or maintain continuous observation of a bike rider coming down Kudilla Street. I am satisfied that the trees and, perhaps, the car parked in number 74 would interfere with the driver’s visibility of users of Kudilla Street. The point to be made in my referring at some length to the vegetation and trees is that a driver proceeding along Thurlgona Road in a westerly direction would know as he/she approached Kudilla Street that his view would be obscured in part by the vegetation.
58 I have already described the area of works in the vicinity of the south eastern corner of the intersection. I have described the trench, I have described the sewer trench, the sag depression, the pot hole and I have said, in my view were not involved in the accident and which had nothing to do with it or any wobbling, if any, of the bike that may have been seen by anyone. I do not propose to return to that particular subject, there is no need to do so.
59 I now turn to another matter in relation to the area in which this accident occurred. In doing so it is appropriate to remember that whatever may have been the lawful speed limit under the ordinary motor traffic speed laws applicable in the area that does not necessarily mean that because there is a lawful speed limit, that such limit necessarily is the appropriate or reasonable one in all circumstances, at all times and at all places in or near the accident location. I have already referred to the obscuring of the view to Kudilla Street for a driver approaching from the east proceeding in a westerly direction and obstruction caused to vision by the trees. A prudent reasonable driver would know as he approached the intersection that there was an obstruction to his visibility and the need to be conscious of such.
60 Also there was evidence given by a Sergeant Crumblin that there was a park in the vicinity of Thurlgona Road some fifty metres or so to the west of the intersection. It was this park, I am satisfied, that the three boys used after they commenced their bike ride from the St John Bosco School to the accident location. I am satisfied that the school was about three kilometres from the accident location. I am satisfied that if the boys had not stopped for a while in this park, as I believe they did, then the time taken to reach to the intersection of Kudilla Street and Thurlgona Road after proceeding along Thurlgona Road to the intersection would have been perhaps in the order of fifteen minutes or so.
61 The defendant, gave evidence as to his state of knowledge of the area. He accepted and admitted in cross examination that he had lived in the area for some twelve months, and that he was aware that there was a nature strip along Thurlgona Road comprising grass with provision being made for driveway aprons on to the road. He said that he was alert to the risk of children coming onto the road. He accepted it would be difficult for children riding push bikes to ride those bikes on the grass verges, that they would have to use the road to travel along. He accepted, so he said, that bike riders would be able to use Kudilla Street as well.
62 Thus it seems to me that these matters which I have referred to are also relevant to what was required by the exercise of reasonable care, indeed, what was demanded by the exercise of reasonable care at the location on that Saturday afternoon at or about 4.40pm. In other words, matters concerning the general nature of the location are, it seems to me, relevant to the issue of the exercise of reasonable care. What will satisfy that duty of care will depend on the circumstances prevailing at the time of the accident.
63 It is appropriate for me to further say something about the matter of speed. As I have said there was a permissible speed limit in the area of sixty kilometres per hour. That does not mean that in all places at all times in the area where sixty kilometres per hour is permitted, or that because the speed limit was 60 kilometres an hour, or that what reasonable care requires is necessarily fixed by reference to that speed limit. Reasonable care is not fixed by a mere compliance alone with the permissible speed limit regulations, any more than it is fixed solely by reference to a permissible speed limit that may be of general operation in an urban area. (See for example Sibley v Kais (1967) 118 CLR 424; see also Yu v Yu (1996) 26 MVR 509.
64 Also having regard to the decision of the Court of Appeal in Stocks & Anor v Baldwin (1996) 24 MVR 416, the common law duty is to act reasonably in all circumstances even where there are regulations the duty to act reasonably in all the circumstances is paramount. (cf also West v GIO (1981) 148 CLR 62 at 66). It is to be remembered that in questions of civil liability one is concerned with the obligation of each road user to exercise reasonable care for the other without regulations or speed limits necessarily being definitive of those respective duties.
65 In the instant case I am satisfied that the driver was approaching the intersection at the maximum optimum speed permitted by the law. He admits that he approached the intersection from the east and that as he moved up the incline he did so at 60 kilometres per hour, and that he sought to maintain that speed which he had been doing before he reached the incline. That said a question arises as to whether the 60 kilometres per hour was a reasonably appropriate speed in the accident location at the time and place when and where the accident took place. Although it was the permissible legal speed, and the maximum legal speed, in the circumstances of this case having regard to the location and the matters to which I have already made reference, I believe and find that the speed was excessive. That is not to say in other areas in the Engadine region the maximum legal speed may not have been reasonable at different times or on a different occasions. The decision in Stocks is relevant in terms of illustrating the significance of speed in the context of motor car vehicle accidents even when the speed is permitted by law. Next, speed is important because the faster one drives the more difficult it may be to stop or the more difficult it may be to pull up suddenly if a foreseeable event takes place: see also Stocks.
66 The defendants’ case, and I seek to summarise it, appears in Mr Neil’s written submissions. It seem to me that such case may be summarised as follows. The defendant was driving on his correct side of the road as he proceeded in a westerly direction to the intersection. He came up an up hill grade at a speed of approximately sixty kilometres per hour. A short time before the accident occurred he observed a person approaching the corner. He claimed that the person he saw was a boy on a bike who appeared to have been racing away from some friends, and that as when seen approaching the intersection he was wobbling at or about that time. The boy on the bicycle was seen heading east and was cutting the corner, so that in effect he was heading north east.
67 It is submitted on behalf of the defendant driver that just prior to the corner the bike rider plaintiff lost control of his bike. Before the collision, the vehicle driver braked lightly, turned his wheel to the right, and veered to the right, and then the accident occurred and collision took place.
68 The driver's case generally was that at some point of time on Kudilla Street the plaintiff’s bicycle crossed on to the incorrect side of Kudilla Street on the path to the east of the centre of that street, travelling at a speed of thirty kilometres per hour, and that on reaching the pot hole it then veered toward the south east corner of the intersection to cut the corner. It was claimed that the plaintiff had headed into the area variously described as a pot hole, depression or dip causing him to loose control and the handle bar to wobble. The boy then veered to his left, and headed in an easterly direction to the dish drain and collided with the van.
69 As I have said, that is the driver's general case although an alternative case has been postulated were I to find that the point of impact was not as the defendant driver claimed it to be namely as occurring to the east of the intersection in Thurlgona Road. However, I do not accept that the driver’s case as to the point of impact as being further to the east of the intersection.
70 I find that the point of impact was in what was called the T intersection. I accept the evidence of the police officer as to how far it was, about six metres north from the southern boundary of Thurlgona Road, that after the driver performed a veering action to the right side of the drain. I find that the impact occurred on the vehicle driver’s incorrect side of the road and in what has been described as in the throat of the intersection as indicated the in exhibit 26.
71 I also accept the evidence that there was about nine metres of skid marks on what might be regarded as being the northern side or incorrect side of the road, which skid marks were made by the defendant’s vehicle.
72 Further, Mr Neil submitted that in the circumstances of this case, even were I to reject the defendant's version of how the boy came into the intersection, where he came into it, and even were I to reject the submission as I have of the boy’s cutting of the corner, as well as rejecting the point of impact as being further to the east of the intersection, that in any event, there was no negligence on the part of the driver and, that on any view, the accident was inevitable. I reject that submission.
73 I consider that in the circumstances of this case what happened was, indeed I find, that the three boys including the plaintiff were proceeding from a position halfway down Kudilla Street towards the intersection; that the three boys were almost in a line, and that the plaintiff in fact was leading the two other boys. I am also satisfied that when the plaintiff in fact approached the intersection he did so at or about a speed of or over twenty kilometres per hour; and that he was drawing away from the other boys. It has not been disputed, as I understand Mr Gross submissions that such finding as to speed is one not open to me. Indeed, it is a finding as to that I make, it is a finding consistent with what I believe took place. It is consistent with my view of the boy proceeding down hill and deciding he needed some speed to move across the intersection; and further that he neither braked or slowed down as he approached the intersection on the correct side of the road in order to do a right hand turn into Thurlgona Road.
74 I reject the evidence of the two young boys, Rhys Baldwin and Adam Madigan, to the extent that a suggestion is made that the young boy, Simon, was entering the intersection at a speed that was really less than twenty kilometres per hour or even at a slow speed.
75 I accept Mr Hughes' evidence that the boy entered the intersection at the referred speed and that was a factor in his decision to veer to the right, rather than continue in the direction he was travelling. I consider that the boy, Simon, entered the intersection or approached the entry having been on the correct side of Kudilla Street, that he travelled down Kudilla Street on the left hand side or the correct side, that he correctly entered the intersection in order to make a right hand turn into Thurlgona Road.
76 I accept, as I have said, that the boy was travelling at some speed in the order of twenty kilometres per hour and that what occurred, is that which I have described.
77 The next matter that needs to be considered is whether, having regard to the point of impact and the findings that I have made, whether it is open to me to find negligence on the part of the first and second defendants. I have already said, having regard to what I find, there is no negligence involved on the part of the third defendant.
78 Mr Neil submitted that even if I reject the view that the accident occurred further to the east but found that the point of the impact occurred in the throat of the intersection, that there was no negligence, or to use his expression in the circumstances of this case, the accident was inevitable. As I have said in my view that submission should be rejected. In my opinion the accident happened in the mode and manner which I have described with the point of the impact being in the intersection as I have described it to be, after the boy had come down the hill on his correct or the left hand side of Kudilla Street and then entering the intersection at about twenty kilometres per hour or so. I am thus satisfied that it is open to find negligence in this case.
79 Indeed, I am satisfied in the circumstances that negligence is to be found on several bases. Despite regulation 67(1) of the Motor Traffic Regulations 1935 (NSW) relating to giving way to the vehicle on the right and despite the rules relating to the maximum legal speed, at common law I also consider that the defendant breached his duty of care in failing to enter the intersection exercising reasonable care in the circumstances.
80 I am also satisfied that in this case I can safely act upon the expert views of Mr Joy and Mr Wingrove. I am satisfied that in the circumstances of this case I should make a finding that the intervisibility of the boy for the driver coming from an easterly direction was something in the order of fifty to fifty-five metres.
81 I am further satisfied that the driver was driving at an excessive speed maintaining a speed in the location which was an unreasonable speed of sixty kilometres per hour. I am satisfied that he should have been driving at a lesser speed. I am also satisfied that in any event even if he were driving at a speed approximating sixty kilometres per hour he was in a situation where, confronted with the boy's accident, that he should have applied his brakes in such a way as to avoid coming into contact with the boy. True it is that he braked gently and veered to the right but, in my view, I believe that that was not the appropriate or correct response in the circumstances. I believe that even allowing for reaction time, that had the defendant driver had he applied his full brakes then and there when he saw the boy, he would have had the opportunity of braking and stopping before an impact. Instead he chose to veer to the right braking. I consider that the driver should have braked when he saw the boy, and done so fully, rather than just lightly and merely veering on to the incorrect side of the road. I also believe that this is a case where because of the driver’s excessive speed that in the circumstances it affected or impacted upon his capacity to be vigilant, and to keep a proper lookout. It also impacted upon his reaction time.
82 I find that the driver was driving at an excessive speed. Further, in my view there was an inappropriate response, once the boy had been seen by the driver.
83 I also bear in mind when the boy was seen by the motorist coming from the east the boy was not turning around or cutting the south eastern corner of the intersection, or was in that position but was, rather, in fact proceeding, as I said, on his correct side of the Kudilla Street and about to make a correct and proper turn into Thurlgona Road.
84 In this case I accept the views of Mr Joy (at p 13 of his report) that the approach speed of the van driven by Mr Hughes was inappropriately high for the narrow residential street with the driveways and the prevailing sixty kilometres per hour speed limit.
85 I accept the opinion that having regard to the bicycle rider being on the correct side of the road, that the evasive swerve by Mr Hughes placed his vehicle on a conflicting path with the bike rider as the rider proceeded to make a right hand turn as he had intended to do, into Thurlgona Road. I accept Mr Joy’s view that had Mr Hughes braked heavily instead of swerving to the right that the collision could have been avoided or the impact substantially lowered. I also accept his view that had Mr Hughes braked heavily as soon as his visibility permitted he could have stopped his van before the accident. Next, I also accept the view of Mr Wingrove particularly stated (in para 19 of his report) in the circumstances of this case. I generally accept the conclusions and opinions expressed by him in his report as well. I believe that in this case the driver is to be found liable upon the basis that he was driving at an excessive speed in the circumstances, that he failed to brake or stop when the boy was seen and further that he failed to keep a proper lookout. That said the matter of proper lookout is perhaps more closely connected with the matter of speed.
86 In coming to this conclusion I might add that I also have regard to the principles that relate to the liability of defendant drivers generally as discussed in the case of Stocks v Baldwin and also in the case of Yu. I would also add that I have had full regard to the duties and obligations owed by a driver particularly in circumstances where children are injured or have been found to have suffered injuries in road accidents. On this point I would refer to the decisions of the Court and to the cases referred to in Lolomanaia v Rush (1996) 24 MVR 128, and to Rush itself. I have also had regard to the principles as more recently discussed by the Court of Appeal in Gunning v Fellows (1997) 25 MVR 97.
87 For all of these reasons I consider that in the circumstances, the plaintiff, and indeed, the plaintiff's parents should succeed in their action and that liability should be found as and against the first and second defendants but not the third defendant.
88 I now turn to the matter of contributory negligence which has loomed very large as an issue in this case.
89 True the plaintiff was aged approximately twelve years at the time of the subject accident; true he was not an adult. Contributory negligence, of course, differs from negligence. There is no duty of care owed to another person and contributory negligence involves conduct which exposes the actor to the risk of injury without necessarily exposing others to risk (see Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563 at 570).
90 The standard of care in respect of contributory negligence is like the standard of care in negligence, it depends upon forseeability. The standard of care when an infant or child is involved in an accident is an objective one to be measured in accordance with principles laid down by the High Court in McHale v Watson (1966) 115 CLR 199 and further discussed by the Court of Appeal in such cases as Fellows to which reference has already been made. The test is objective. There are a number of factors to be brought into account. The principles relating to evaluation and assessment of contributory negligence have been well discussed. They need not be repeated. The relevant principles are to be found in decisions of the High Court in Podrebersek v Australian Iron and Steel (1985) 59 ALJR 492 and referred to and discussed particularly by Justice Simos in Stocks v Baldwin (supra) at p 426.
91 In Podrebersek the High Court said (at 493-494):
"A finding on the question of apportionment ... It involves an individual choice or discretion as to which there may be differences of opinion by different minds ….”
92 In this case I, despite the plaintiff's age and despite his infancy, consider the that plaintiff's contributory negligence was significant. Mr Neil has submitted that were I to find that there was negligence on the part of first and second defendants that the contributory negligence of the plaintiff should be somewhere in the order of eighty percent. Mr Gross submitted were I to find contributory negligence, that I should find it to be no more than in the order of perhaps fifteen to twenty percent.
93 I am satisfied that, as I said, the boy entered riding his bike into the intersection at a speed of at or about twenty kilometres per hour and was not braking at the time he did so. He was riding into a T intersection to cross the top of the T. He had to make a right hand turn. I am also satisfied in the same way as the driver could have seen the plaintiff so could the bike rider have also seen the driver as the driver proceeded west in Thurlgona Road.
94 I also have regard when considering the matter of contributory negligence, to the fact that the plaintiff was a child. I have also had regard to the fact that the plaintiff was riding a bike. However, the defendant was driving a heavy truck which could cause considerable injury were he to breach his duty to take reasonable care for other persons: see (Pennington v Norris (1956) 96 CLR 10 Stocks v Baldwin; Gunning v Fellows) and other cases I have referred to.
95 Matters, and I do not seek to be exhaustive in my list, that I regard as being of particular significance in this case, includes the boy’s speed on approaching the intersection at twenty kilometres per hour and the finding that the boy in my view did not stop or slow down as he in entered that intersection at or about that speed. I have also referred to the fact that the boy breached regulation 67(1) of the Motor Traffic Regulations in failing to give way to the vehicle on his right: see Sibley v Kais.
96 The boy was riding a bike which he was competent to ride. He approached the intersection. He was capable of seeing the vehicle on the right. He ignored the call of his brother to "Stop, Simon". He failed to slow down or stop at the intersection. I would observe in passing that the brother, Adam Madigan, was aware of the need for some caution on an approach to an intersection such as this. He said that he actually shouted to his older brother to, "Stop, Simon".
97 There are other matters which I believe in this particular case should be brought into account. It has not been argued they should be ignored. I shall refer to them. The plaintiff was an experienced rider. As I have already indicated, he came from a family where there were bike riders where the father was keen on bike riding and where the siblings were keen on bike riding. The plaintiff had been a bike rider for some years prior to the accident, having owned his bicycle for a couple of years. Indeed on this particular occasion, the boy had specific and particular instructions in relation to riding on the road. According to Mr Madigan he knew that the boys could ride their bikes on the road. He had taught the young man to ride, he was satisfied that the young man, provided he exercised good and proper care could be permitted to ride on the road, on a public road. Not only had he given him general instructions and not only was the boy an experienced rider, but specifically on the afternoon in question, the father said (at p 102) that the plaintiff when he left St John of Bosco Primary School with the two boy friends had been also told by him to stay on the left hand side and that he did not want any mucking around. He was satisfied that Adam and Simon, prior to this had received instructions relating to safety on bikes.
98 However, the matter does not stop there. Not only had the boy been given specific instructions on road safety beforehand but also two to three weeks before the accident, the boy had completed a bike eduction week at the St John of Bosco School where the police had come to the school to teach bike safety in relation to use of bikes.
99 I am satisfied that Simon attended bike safety week and understood the additional requirements and he was taught by teachers and by police officers. I am also satisfied that Simon, according to his father, knew the rules that had to be applied in relation to the responsibilities, obligations and rules in relation to bikes. These are additional matters which I believe are significant in terms of evaluating the degree of experience on the part of the plaintiff. It is not suggested I should ignore them.
100 I also take into account, of course, that the plaintiff may like all children not have recalled lessons that have been taught to them. That is involved in the nature of being a child and something to be considered when determining what is the proper measure of contributory negligence.
101 I consider that in the circumstances of this case should be found to have been guilty of contributory negligence to the extent of forty per cent.
102 There should be a verdict and judgment for the plaintiff as and against the first and second defendant, a verdict and judgment for the third defendant. In respect of the plaintiff child’s parents action for nervous shock, there should be a verdict and judgment for each of them in this action as and against the first time and second defendants. There should be a verdict and judgment for the third defendant in each of their cases.
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